ALLISON & ANOR v. STERLING CAPITAL MARKETS LIMITED (2017)

In The Court of Appeal of Nigeria

On Monday, the 19th day of June, 2017

CA/E/550M/2014(R)

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria


Between

1. MR. SONNY ALLISON
2. IMPEX WORLDWIDE LIMITED  Appellants

AND

STERLING CAPITAL MARKETS LIMITED  Respondent

…………………….A…………………….

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Lead Ruling): The Applicants brought an application by motion on notice filed on 16/11/16 pursuant to Order 7 Rules 1 and 10(1) & (2) of the Court of Appeal Rules 2011. The motion is supported by an affidavit of 16 paragraphs to which 3 exhibits were attached.By the said motion on notice, the Applicants are praying this Court for extension of time to appeal against the default judgment delivered by Hon. Justice A.R. Ozoemena of the Enugu State High Court on 17/12/13.
The grounds for the application as contained on the face of the motion paper are as follows:
(a) The Appellant was very sick and down with stroke for a long time, and admitted at Smart Health Hospital on the 30th day of October 2013 for medical attention.
(b) The former law firm engaged to handle this matter could not continue to render the required legal services as a result of the Appellants ill health which affected their funding.
(c) The Appellants time within which to file their Notice of Appeal has expired hence this application.
The events that gave rise to this application are that the 1st Applicant as plaintiff instituted an action against the Respondent at the trial Court. The Respondent filed a counter claim to which the 1st Applicant failed to respond. On 17/12/2013, the Respondent moved an application for judgment in default of defence to the counter claim. The learned trial judge found as a fact that the 1st Applicant was duly served with the counter claim but did not put in a defence to the counter claim and default judgment was thus entered for the Respondent as per its counter claim. The Applicants could not file an appeal within the time specified by the Rules of Court, hence this motion for extension of time to appeal against the said default judgment.
Learned Applicants counsel, Chidi E. Ujoatumba submitted at the hearing of this application that this Court has the discretionary powers to grant this application. Counsel submitted that the 1st Applicant was ill and could not appeal in time and he urged the Court to exercise its discretionary powers in favour of the Applicants and grant the application.
Lekan Bade-John of counsel for the Respondent on the other hand submitted that the Applicants have not shown sufficient reason why the Court should grant the application. Counsel submitted that the 1st Applicant appears to blame the previous counsel for the delay and that illness is not a good reason not to appeal timeously by a limited liability company.
Respondents counsel submitted that Exhibit 1 attached to the Applicants motion on notice shows that the 1st Applicant was discharged on 12/12/13 and judgment was delivered in default on 17/12/13. Counsel relied on Khawani v. Elias (1960) NSCC Pg. 152 and urged the Court to refuse the application.
OPINION.
I have carefully considered the application which is supported by a 16 paragraph affidavit to which were attached several exhibits, i.e. the proposed Notice of Appeal, record of proceedings/judgment of the lower Court sought to be appealed against and the medical report on the 1st Applicant issued by a private hospital.

…………………….B…………………….

It is settled law that an appeal which is filed out of time and without leave to extend the time within which to file is incompetent and to embark on hearing such appeal is a sheer waste of time. An Appellate Court would lack jurisdiction to hear an appeal which was filed out of time and in which the Appellant took no step to have the time prescribed by the Rules of Court extended in accordance with the Rules. Agu v. Odofin (1992) 3 SCNJ 161, Adelekan v Ecu-Line NV (2006) 12 NWLR Pt. 993 Pg. 33.
By the Rules of this Court, this Court may extend the period prescribed for filing an appeal. The Court of Appeal Rules 2016 in Order 6 Rule 9 (formerly Order 7 Rule 10, Court of Appeal Rules 2011) prescribe conditions to be followed in bringing an application for extension of time within which to appeal.
Order 6 Rule 9 stipulates as follows:
(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such 
enlargement shall be annexed to the notice of Appeal.
In essence, for an application for extension of time within which to appeal to succeed, there must be good and substantial reasons for the failure of the Applicant to appeal within the period prescribed by the appropriate Rules of Court and the Grounds of Appeal must prima facie show good cause why the appeal should be heard. See Nwora v. Nwabueze (2011) 15 NWLR Pt. 1271 Pg. 467, F.H.A. v. Kalejaiye (2010) 19 NWLR Pt. 1226 Pg. 147.

The 1st Applicant at paragraphs 3-9 deposed to facts that show that the 1st Applicant who is alter ego of the 2nd Applicant was ill for a long time and that his illness affected his business and his communication between his lawyers who could not be briefed speedily to violate the appeal process on his behalf.
The question is whether illness of a litigant is good and substantial reason for delay in filing an appeal. Generally speaking, illness of a party depending on the peculiar facts and circumstance disclosed in an affidavit which were not challenged or denied would provide sufficient and cogent reason to satisfactorily explain the delay by a party in filing an appeal within the time prescribed by law. This is because ill health and its seriousness is not something that can usually or normally be predicted. The seriousness and the length of time an illness takes are ordinarily beyond the control of the person affected.
Generally, sickness or ill health, where shown, may be viewed as good and substantial reason for the delay in filing an appeal by a prospective Appellant who took ill and could not faithfully prosecute his appeal within time. In this case, the Respondent has not filed any counter affidavit challenging the correctness of the facts deposed to by the 1st Applicant in the affidavit in support of the application. However, Exhibit 1 reveals that the 1st Applicant was discharged on 12/12/13 and the judgment challenged was delivered on 17/12/13. I am not unaware that in this type of application, the applicant need not justify the period of delay in respect of every day, week or month. See Iyalabani & Co. v. Bank of Baroda (1995) 4 SCNJ 1, (1995) 4 NWLR Pt. 387 Pg. 20.

…………………….C…………………….

Learned Counsel for the Respondent submitted that illness is not a good reason not to appeal timeously by a limited liability company. There is no doubt that a limited liability company is a separate and distinct entity from its directors as it has its own personality duly recognized by law. See Zest News v. Waziri (2004) 8 NWLR Pt. 875 Pg. 267. The law however ascribes the right to control the will and mind of a limited liability company to the directors and managers who represent the mind of the company since it cannot form an intention, being a mere legal fiction incapable of acting on its own. See Olalekan v Wema Bank (2006) 13 NWLR Pt. 998 Pg. 617, Trenco Nig. Ltd v. African Estate & Inv. Co. Ltd. (1978) 4 SC 9.
The 1st Applicant is the alter ego of the 2nd Applicant, a limited liability company. The Directors of a company, as I noted earlier, represent the state of mind and will of the company and control what it does, as such, the law treats the state of mind of the Directors as that of the company. See Longe v. FBN Plc. (2010) 6 NWLR Pt. 1189 Pg. 1.
It is the law that as long as there is a substantial reason justifying the delay in filing an appeal or an application for extension of time, the length of the delay in filing same is immaterial. See Yesufu v. Co-operative Bank Ltd (1989) 3 NWLR Pt. 110 Pg. 483, Isiaka v. Ogundimu (2006) 13 NWLR Pt. 997 Pg. 401.
The law is also clear as emphasized in Kwahani v Elias (1960) SC NLR 516, cited by the Respondents counsel, that in the exercise of its discretion to hear applications before it, the Court is guided by considerations of doing justice between the parties and to ensure ultimately that the dispute between the parties are decided on the merit.
To succeed in an application for enlargement of time within which to appeal, the applicants need to show good and substantial reasons for the delay AND arguable grounds of appeal prima facie showing good cause for hearing the appeal. This is at the discretion of the appellate Court. Both conditions must co-exist before leave to appeal can be granted. See ANPP v. Albishir (2010) 9 NWLR Pt. 1198 Pg. 118.
I have looked closely at the bare facts of this case as set out in the motion papers. Paragraphs 1-12 of the affidavit in support of this motion are as follows:
1. That I am the 1st Plaintiff/Applicant in this matter.
2. That I have the consent of the 2nd Plaintiff/Applicant to 
depose to this affidavit on its behalf.
3. That I have been sick for a very long time and on 30th day of October 2013, I was hospitalized at Smart Health Hospital Lagos for medical attention. (copy of the medical report hereby attached and marked as Exhibit 1)
4. That as a result of my illness I have been unable to attend to my family, my businesses and other corporate and legal responsibilities, including this suit.
5. That after I was discharged from the hospital, my Counsel Chidi E. Ujoatumba Esq. informed me and I verily believe him:
a) That the former Law firm I engaged to handle this matter could not continue to render the required

…………………….D…………………….

legal services as a result of my illness which affected their funding.
b) That on the 17th day of December 2013, Hon. Justice A.R Ozoemena of Enugu State High Court entered a default Judgment/Order against me and the 2nd Plaintiff/Appellant based on an undefended counter claim filed by the Defendant/Respondent. (copy of the judgment is hereby attached and marked as Exhibit 2)
c) That in executing the above judgment, the trial Court on the 29th day of April 2014 granted a Garnishee Order in favor of the Judgment Creditor as a result of the Judgment of 17th of December, 2013.
6. That the judgment was delivered by the trial Court on the 17th day of December 2013 was given during the period of my ill health.
7. That my long period of illness and lack of communication estranged my relationship with my lawyers.
8. That as a result of my ill health, I was unable to furnish my lawyers with the necessary information and finance required to file this application within time.
9. That the Defendant/Respondent was aware of my illness, instead of them to find out the status, they went ahead with the suit and obtained a default Judgment/Order.
10. That the Defendant/Judgment Creditor is threatening to dispose my family property at 2 Ikenna Okwesili Street, Ekulu West G.R.A Enugu to realize the security.
11. That my counsel has informed me and I truly believe him that the default judgment/Order was obtained by fraud and that the Appeal Court has jurisdiction to set it aside and order a retrial.
12. That I have filed my Notice of Appeal dated 14th Nov. 2014 and a copy is hereby attached and marked Exhibit 3.

The proposed Notice of Appeal, Exhibit 3 attached to the affidavit in support of the application, the only viable ground of appeal which is Ground one with its particulars states as follows:-
GROUND ONE
The learned trial judge erred in law when he entered judgment in the counter-claim without hearing evidence from the counter claimant.
PARTICULARS OF ERROR
a. The Court entered judgment in the suit (counter-claim) on a mere application of counsel without evaluation of evidence.
b. The rules of Court under Order 30 Rule 3 only permits default judgment in counter-claim after the counter-claimant must have proved his case so far as the burden of proof lies on him.

Obviously there are arguable grounds of appeal as indicated above. The question of their likely success is not an issue at this time. It is the law that a party who has had default judgment entered against him has several choices of either accepting the judgment, applying to the trial Court to set aside the default judgment or to appeal against it. The Applicants seek to extend time within which to exercise their right of appeal. The state of the law as it is favours the Applicants for a grant of this application so I am inclined to grant same albeit hesitantly. It is my sincere hope that this appeal is not one of those appeals pursue to deliberately delay the final settlement of the dispute between the parties. This Application is granted in the interest of justice. Time to appeal is hereby extended by 14 days from today to file Notice of Appeal.
Application Granted. No order ass to costs.

…………………….E…………………….

IGNATIUS IGWE AGUBE, J.C.A.: I have read the following Ruling just delivered by my noble Lord, the Learned P.J and am in total agreement with his reasoning and conclusion that the Application for extension of time is meritorious particularly as the Grounds of Appeal are arguably in the peculiar circumstances of the case.
Moreover, the main reason for the delay in filing the Appeal is ill-health which can afflict any mortal. To refuse this Application will therefore wrought grave injustice on the Applicant/would-be Appellant by depriving him of his right to ventilate his grievances against the Judgment of the Lower Court. Accordingly, I grant the Application and abide by the consequential Orders as made by my Lord.
JOSEPH TINE TUR, J.C.A. (DISSENTING): I have read the decision of my learned colleague on the bench, Helen Moronkeji Ogunwumiju, JCA. I have titled this determination an opinion to conform with the provisions of Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The word Ruling is copiously omitted from the provisions of Section 294(2)-(4) and 318(1) of the Constitution. The provisions are couched as follows:
(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion: 
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose 
of delivering its decision under this section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
318(1) Decision means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation.

The intention of those who enacted the Constitution of the Federal Republic of Nigeria, 1999 as altered is of paramount consideration. This may be deciphered by the words employed in any provisions of the Constitution, an Act of the National Assembly, a Law of a State House of Assembly or Rules of Practice and Procedure governing civil or criminal causes or matters. The express intention of the legislature is that in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation, under Section 294(1)-(4) and 318(1) of the Constitution is a decision in Court whose proceedings are conducted under Section 294(1) of the Constitution. In respect of proceedings in the Supreme Court or the Court of Appeal such determinations by the Justices are either decisions or opinions. The word ruling, interlocutory ruling, or interlocutory decisions or interlocutory judgments, etc, is not defined in Section 318(1) of the Constitution. I cannot close my eyes and pretend that this is not the intention of the legislature.
In Ojora & Ors. vs. Odunsi (1964) NMLR 12, learned Counsel had difficulties in knowing whether the decision of the learned High Court Judge was final or interlocutory hence time to appeal expired, Taylor, JSC observed at page 15 as follows:

…………………….F…………………….

It is within the discretion of this Court to grant an application for extension of time to appeal if the circumstances of the case warrant it. In the particular case on appeal before us the would-be-appellants are out of time because of an error in law in treating the order sought to be appealed against as a final instead of an interlocutory one, a matter which is not always free from difficulties. It is certainly in their favour that the notice of Appeal was filed within the 14 days normally allowed for an application for leave to appeal against an interlocutory order of judgment to be filed. Looking at the affidavit of the applicants, paragraphs 5, 7 and 8 in our view provide substantial reasons why the extension of time should be granted. Incidentally, the reason or ground for extension of time given in paragraphs 5 and 8 of the affidavit, which deals with the error in law or misconstruction of the effect of the order sought to be appealed against by Counsel is nearly on all fours with that given in the case of Gatti vs. Shoosmith(4) where the Court held, on page 919, that:-
There is nothing in the nature of such a mistake (i.e. of law) to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case.

In Uwaifo vs. Attorney-General of Bendel State & Ors. (1982) 7 SC 124, Idigbe, JSC observed at pages 187 to 188 as follows:
Finally, although side-notes or explanatory notes to statutes are principally to be ignored as aids to interpretation of statutes, (See Lord Reid in Chandler vs. Director of Public Prosecutions (1964) AC. 763 at 789 no judge can be expected to treat something which is before his eyes as though it was not there. In the words of Upjohn, LJ, which I gratefully adopt and with which I am in respectful agreement, while the marginal note to a section and I would add, the side or explanatory note to an enactment cannot control the language used in the Section, it is at least permissible to approach a consideration of its general purpose and the mischief at which it is aimed with the note in mind (See: Stephens vs. Cuckfield Rural District Council (1960) 2 Q.B. 373; also Sir Rupert Cross on Statutory Interpretation, 1st edition (1981 Reprint) p.113; underlining, brackets and contents therein supplied by me).
In Emegwara vs. Nwaimo (1954) 14 WACA 347, Verity, C.J. held at page 349 thus:
In my view the case put forward by the respondents both at the trial and before us satisfies neither of these conditions. It is not clear from the pleadings nor from the evidence nor from the argument of Counsel what precisely is the nature of the right or title in respect of which a declaration is sought. It is impossible therefore to hold that the evidence establishes any title at all which would justify the Court in making a declaration. The most that can be said is that by the endorsement upon the summons the respondents claimed titular ownership, a vague expression which may mean no more than nominal ownership. The statement of claim hesitates between allegations of absolute ownership from time immemorial which is, in my view, indistinguishable from original ownership, and the acquisition of title several generations ago by grant from the appellants predecessors in title. These allegations are inconsistent, but Counsel assures us that it is the latter allegation which is the real basis of the respondents claim. It is beyond doubt that such grants may take many forms, ranging from an absolute gift to a mere tenancy or right of occupation subject to conditions. Lying between the two extremes there may be a grant of such complete user without payment of tribute or other term or condition that all that is reserved to the

…………………….G…………………….

grantor is a right to reversion should the grantee abandon his right of occupation or succession to that right fail.
It is essential before any declaration is made that the party seeking it should state specifically what is the nature of the right he claims and that he should prove that the terms of the grant under which he claims conferred such a right. Unless these two factors are present the Court cannot properly exercise its discretion in his favour and make any declaration.
Nowhere in the present case have I been able to find that the nature of the right is specified, nor have I been able to find evidence as to the precise terms of the grant upon which any such specific claim could be based. I cannot conceive that it is the duty of the Court to endeavour by examination of the evidence to deduce what ought to be or might be the true nature of the claim and then proceed to make a declaration which the plaintiff has not specifically sought and may not in fact desire. It would indeed be improper for the Court so to do unless it were prepared to order an amendment of the pleadings, in which case it would be necessary to give the defendant an opportunity of meeting what would be an entirely different 
case. Such a course if followed at all would only be followed with great reluctance and upon the clearest possible evidence.
In my view the learned Judge had before him neither a claim nor evidence which would justify him in making the declaration sought and he erred in making it. I would therefore vary the judgment in the Court below by deleting therefrom so much thereof as relates to the respondents claim for a declaration of title. I would, however, dismiss the appeal in so far as it relates to the judgment awarding damages for trespass and issuing an injunction restraining the appellants from further trespass. This should make it clear and I desire to emphasize this, that the failure of the respondents in their claim for a declaration of title affects in no way their present right to exclusive and undisturbed possession of the land delineated in the plan to which I have referred and marked thereon as Okpulo. Whatever may be the precise nature of this grant or the terms upon which they are entitled to such occupation, it is clear that unless and until the appellants can by suit show that this right has been extinguished they have 
no right whatever to enter upon the land in disturbance thereof or at all.
In Ogunro & Ors. vs. Ogedengbe & Anor. (1960) 5 FSC 137 Hubbard, Ag. F.J. held at page 140 as follows:
There is one other point, not raised on this appeal, which I think should be dealt with. The order, as regards the Nigerian properties, is an order that the beneficiaries be given certain properties. Who is to give these properties? And is there not, in the form of the order, and unjustified lumping together of the two remedies sought in the motion, namely, a declaration who is entitled, and a direction that the properties be distributed to those entitled? In my view, the order should be varied so as to make (1) a declaration of the rights of the parties and (2) a declaration that effect be given to these rights. Mr. Akinrele, who appeared for the respondents in this Court, was under the impression that it would be for the beneficiaries themselves to convey the properties to those entitled. This is clearly erroneous. The legal interest in the Nigerian properties vested in the personal representatives of the deceased from the date of the grant of letters of administration (Land Transfer Act, 1897, S.1) and it is to them that any directions should issue.

…………………….H…………………….

I have made these observations though they do not have any effect on the merit of this application/appeal.Section 30 of the Court of Appeal Act, 2004 defines an appeal to include an application for leave to appeal. An appellant means any person who desires to appeal or appeals from a decision of the Court or who applies for leave to so appeal, and includes a Legal Practitioner representing such a person in that behalf. An appellant is conferred with the constitutional and legal power and authority to appeal against the decision of a Court below to the Court of Appeal. The word decision is as defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 to exclude a ruling interlocutory or final. What is a decision is not defined in Section 30 of the Court of Appeal Act, 2004 nor in Order 1 Rule 5 of the Court of Appeal Rules, 2016. The constitutional and legal position could be that an application or an appeal can only be brought against a decision of a Court as defined in Section 294(1)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. However, in Abubakar vs. YarAdua & Ors. (2008) 4 NWLR (Pt.1078) 465, Niki-Tobi, JSC held at page 496 paragraphs G-H as follows:
That takes me to the preliminary objection of the 1st and 2nd respondents. They are two. The first one is to the effect that the appellants had taken steps by leading witnesses and tendering several thousands of documents in proof of their cases and the defence had equally opened and closed their case and written addresses ordered by the Court. The second one is that the appeal is now a mere academic exercise as the parties have led copious evidence and they have been given time to file addresses awaiting for adoption on 28th January, 2008.
Appeal is a constitutional right which cannot be taken away from or denied an appellant. No Court of law has the jurisdiction to take away from or deny an appellant his constitutional right to appeal. I cannot deny the appellants 
their right of appeal based on the two grounds of the preliminary objection. Whether the parties have taken steps in the matter in the Court of Appeal developing into the closure of their cases and awaiting adoption of written addresses, this Court is not competent to deny the appellants their constitutional right to file an interlocutory appeal.
Is an interlocutory appeal a decision within the definition of a decision in Section 294(1)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered? That may be argued at the appropriate forum when the time comes. But I have made these observations in case I tag this determination a ruling and the outcome is not favourable to any or all the parties, whether an appeal would lie to the Supreme Court it is not a decision or an opinion as defined in Section 294(1)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Sections 240-243 of the Constitution of the Federal Republic of Nigeria, 1999 as altered confers the right of appeal with or without leave only in respect of the decisions of the Courts or other tribunals mentioned in those provisions. Section 24(1)-(4) of the Court of Appeal Act, 2004 however provides as follows:
(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this Section that is applicable to the case. 
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:
(a) In an appeal in civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed

…………………….I…………………….

against.
(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this Section.

What is an interlocutory decision or a final decision within the contemplation of Section 24(2)(a) of the Court of Appeal Act, 2004 is however not included in Sections 294(1)-(4) and 318(1) of the Constitution. Can an Act of the National Assembly confer jurisdiction on the Court of Appeal regarding an interlocutory or final decision whereas decision as defined in Section 318(1) of the Constitution clearly omits the word interlocutory or final decision? See Section 241(a) of the Constitution which mentions for final decisions in any civil or criminal proceedings without definition.
Surely, a final decision is not the same as an interlocutory decision. The learned authors of Blacks Law Dictionary, 9th edition defines a final decision under judgment at page 919 as follows:
Judgment: 1. A Courts final determination of the rights and obligations of the parties. The term judgment includes an equitable decree and any order from which an appeal lies 2. English law. An opinion delivered by a member of the appellate committee of the House of Lords; a Law Lords judicial opinion.
An action is instituted for the enforcement of a right or the redress of an injury. Hence a judgment, as the culmination of the action declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other. But as no right can exist without a correlative duty, nor any invasion of it without a corresponding obligation to make amends, the judgment necessarily affirms, or else denies, that such a duty or such a liability rests upon the person against whom the aid of the law is invoked. 1 Henry Campbell Black, A Treatise on the Law of Judgment, paragraph 1, at 2 (2 edition, 1902).

An interlocutory at page 889 as follows: (of an order, judgment, appeal, etc,) interim or temporary; not constituting a final resolution of the whole controversy. Also termed medial
An interlocutory application as a motion for equitable or legal relief sought before a final decision Blacks Law Dictionary, page 115. An interlocutory order is defined at page 1207 as: An order that relates to some intermediate matter in the case; any order other than a final order. Most interlocutory orders are not appealable until the case is fully resolved. But by rule or statute, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class-certification orders) to be immediately appealed. Also termed interlocutory decision; interim order; intermediate order. See appealable decision under DECISION; COLLATERAL-ORDER DOCTRINE.
How about ruling
A ruling is defined at page 1450 in Blacks Law Dictionary as follows:

…………………….J…………………….

1. The outcome of a Courts decision either on some point of law or on the case as a whole. Also termed legal ruling. Cf. Judgment (1); Opinion (1)
A distinction is sometimes made between rules and rulings.

Whether or not a formal distinction is declared, in common usage legal ruling (or simply ruling) is a term ordinarily used to signify the outcome of applying a legal test when that outcome is one of relatively narrow impact. The immediate effect is to decide an issue in a single case. This meaning contrasts, for example, with the usual meaning of legal rule (or simply rule). The term rule ordinarily refers to a legal proposition of general application. A ruling may have force as precedent, but ordinarily it has that force because the conclusion it expresses (for example, objection sustained) explicitly depends upon and implicitly reiterates a rule a legal proposition of more general application Robert E. Keeton, Judging 67-68 (1990).
But as I said before, a ruling is not a decision within the provisions of Sections 294(1)-(4) and 318(1) of the Constitution.
In Maxwell On the Interpretation of Statutes, 12th edition by P. St. J. Langan, page 33 appears the follows:
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. We are not entitled, said Lord Lorebun, L.C., to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.
In Udoh & 2 Ors. vs. Orthopaedic Hospitals Management Board & 1 Ors. (1993) 7 SCNJ (Pt.2) 436, Karibi-Whyte, JSC held at page 443 that:
It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expressio unius est exclusion alterius. See A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue – See Ogbunyiya vs. Okudo (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.
See also Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.8) 280 and Attorney-General of Bendel State vs. Aideyan (1989) 4 NWLR (Pt.118) 646.
The majority opinion or decision of the Justices that heard the application/appeal will constitute the determination of this application by the Court of Appeal. I have seen the grounds for bringing this application by the applicants.
An applicant who is seeking extension of time to appeal the decision of a lower Court is to be regarded as an appellant within the meaning of Section 30 of the Court of Appeal Act, 2004. The

…………………….K…………………….

application for extension of time to appeal is equivalent to an appeal within the context of Section 30 of the Act (supra).
This intention of the legislature is made manifest in Order 1 Rule 5 of the Court of Appeal Rules, 2016 where the President of the Court of Appeal, being the Rules Maker provides as follows:
ppeal means the filing of notice of appeal, and includes an application for leave to appeal;
Appellant means any person who appeals from a decision of the Court below and includes a Legal Practitioner representing such a person in that behalf.

An appeal means the filing of a Notice of Appeal, and includes an application for leave to appeal. An appellant means any person who appeals from a decision of the Court below and includes a Legal Practitioner representing such a person in that behalf. In Williams vs. Mokwe & Ors. (2005) 7 SCNJ 318, Kalgo, JSC held at pages 331 to page 332 as follows:
By Section 31 of the Court of Appeal Act, an appellant is defined to mean any person who desires to appeal or appeals from a decision of the Court below or who applied for leave to appeal, and includes a legal practitioner representing such a person in that behalf. By filing the motion for leave to appeal in the trial Court on 28th July, 1994, the day the judgment was delivered by that Court, the respondent was definitely desirous of appealing against it to the Court of Appeal. He was therefore an appellant within the meaning of Section 31 of the said Act. It is not in dispute however that the respondent though not a party to the case then filed its appeal on 28th July, 1994 before the actual leave to do so was granted by the Court of Appeal. At that stage, the appeal was no doubt a nullity. However, being an appellant at that time and having filed its notice of appeal without leave, which is no doubt void it then filed its application for leave to appeal in the Court of Appeal and in prayer 3 asked for order deeming the notice and grounds of appeal it filed earlier as properly filed in order to regularize the filing of the notice of appeal. This in my view, makes it unnecessary for the requirement of a separate prayer for enlargement of time to appeal in the circumstances of this case. Therefore the Court of Appeal having granted the 2nd respondents prayer for leave to appeal without any objection by the appellant the Court was perfectly entitled, in my view, to grant the 3rd prayer deeming the notice of appeal filed on 29th July, 1994 by the 2nd respondent as properly filed in this case. And although it has retrospective application, the order was only intended to regularize the filing of the notice of appeal carried out on 28th July, 1994. The case of Cooperative Bank of Eastern Nigeria Ltd. (supra) cited by the appellant in support of the submission that the grant of leave by the Court of Appeal cannot be retrospective, is a Court of Appeal decision not binding on this Court, and is not in all fours with the instant appeal. In the Cooperative Banks case there was an application for extension of time to appeal, but in this case there was none, as the respondent, on filing the application on 28th July, 1994, became an appellant by law and had earlier filed its notice of appeal though not regular, as no leave to appeal was then granted to it. When the Court of Appeal granted the leave to appeal and deemed the notice of appeal as properly filed, the appeal was regularized which has, of course, retrospective effect.
In Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76, Karibi-Whyte, JSC held at page 119 that:
It is a well-established principle of construction of statutes, and indeed the

…………………….L…………………….

Constitution, that where the definition section, therein has defined a particular word or expression, the meaning so given to the word, unless the context otherwise requires, shall be used throughout the statute. See Ejoh vs. I.G.P. (1963) 1 All NLR 250.
Section 24(1)-(4) of the Court of Appeal Act, 2004 prescribed the time a party aggrieved with the decision of a Court below may file a Notice of Appeal.
The decision of the Enugu State High Court was rendered by Ozoemena, J., on 17th December, 2013. The appellants did not file a Notice of Appeal within the periods stipulated under Section 24(2)(a) of the Court of Appeal Act, 2004 as amended till the time for appealing had expired. When time for appealing has expired an appellant has to seek leave of the Court of Appeal to have time extended for the aggrieved party or a party interested in the decision to appeal. Extension of time will, in such a case, involve the exercise of a judicial decision to be exercised by the Court of Appeal in which case the Court may grant or refuse the application for leave to appeal.
An application for leave to appeal is defined at page 115 in Blacks Law Dictionary (ante) as: A motion asking an appellate Court to hear a partys appeal from a judgment when the party has no appeal by right or when the partys time for an appeal by right has expired. The reviewing Court has discretion whether to grant or reject such a motion.
To determine an application/appeal of this nature the Court of Appeal has to be guided by the provisions of Order 6 Rule 7 of the Court of Appeal Rules, 2016 which are couched as follows:
7. Requirement of application for leave (Form 5):
The application for leave to appeal from a decision of a lower Court shall contain copies of the following items, namely:-
(a) Notice of motion for leave to appeal (Form 5);
(b) A certified true copy of the decision of the Court below sought to be appealed against;
(c) A copy of the proposed grounds of appeal; and
(d) Where leave has been refused by the lower Court, 
a copy of the order refusing leave.
But where the time for appealing has expired the provisions of Order 6 Rules 9(1)-(2) of the Rules (supra) shall apply. They are as follows:
9. Enlargement of Time:
(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the Notice of Appeal.

The provisions of Order 6 Rule 9(1) of the Rules do not apply to this proceeding since the time for appealing, whether before or after the expiration of the stipulated periods, is not governed by Rules of Practice and Procedure but by the Court of Appeal Act, 2004 and Sections 240-241 of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Where time for appealing has lapsed an applicant/an appellant has to bring the application under Order 6 Rule 9(2) of the Court of Appeal Rules, 2016 which provides as follows:
(2) Every application for an enlargement of time within which to appeal shall be

…………………….M…………………….

supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the Notice of Appeal.
The appellant has to show in this application in the supporting affidavit good and substantial reasons for failure to appeal within the prescribed period as set out in Section 24(2)(a) of the Court of Appeal Act, 2004 as amended. Secondly, there has to be shown grounds of appeal which prima facie show good cause why the appeal should be heard See second limb to Order 6 Rule 9(2) of the Rules (supra). The Supreme Court has held that the two conditions precedent must co-exist for the application to be granted. See Chrisray (Nig.) Ltd. vs. Elson & Neil Ltd. (1990) 3 NWLR (Pt.140) 630 at 640 and Rt. Hon. Uduimo Itsueli & Anor. vs. Securities and Exchange Commission & Anor. (2016) 6 NWLR (Pt.1507) 160 at 172 per Ogunbiyi, JSC.
The Court of Appeal may refuse to extend time for an applicant/appellant to appeal upon taking into consideration the present position of the law and other factors, example, public interest suits or the amount of money involved, etc. This position was taken by Lord Denning, M.R. in Chapman vs. Honig (1963) 2 All E.R. 513 wherein the Master of the Rolls held at page 526 as follows:
Counsel for the tenant asked for leave to appeal to the House of Lords. After hearing argument LORD DENNING, M.R., said: We have considered your application. This is a case in which we would certainly in the ordinary way, on account of its general importance, have given leave to appeal to the House of Lords, but in view partly of the small amount of money involved, and, of much more importance, in view of the present position of the law whereby an unassisted person may find himself saddled with a great amount of costs which would not be paid by the legally aided person, we do not give leave to appeal. If the law should be altered in future, the position will be different, but we do not think, save in exceptional circumstances, that an unassisted person should be taken to the House of Lords and have to find a large sum of money out of his own pocket (40).
Leave to appeal to the House of Lords refused.

In Searle vs. Wallbank (1947) 1 All E.R. 13 Viscount Maugham held at paragraphs H as follows:
The appellant appealed to the Court of Appeal, contending that the Judge was wrong in law in holding that there was no duty on the part of the respondent so to fence his land as to prevent his horse from straying upon the highway. The appeal was dismissed after a hearing by MACKINNON, LAWRENCE and MORTON, L.JJ., but they thought fit to give leave to appeal to this House, apparently because of some expressions of opinion in Hughes vs. Williams (2) to the effect that the state of the law laid down by the older authorities was not very satisfactory having regard to modern conditions. I must observe that, in giving leave to appeal in what is considered to be a test case, the position of the respondent as to costs, if the appeal should fail, ought to be born in mind. It is an unfortunate fact for the respondent in this case that the appellant presents his appeal as a poor person.
In view of the nature of the case Viscount Maugham reviewed the facts and previous decisions before holding at page 17 to wit:
My Lords, I have dealt with the matter at some length owing to my respect for the doubts expressed by some eminent Judges which seemed to call for an elaborate consideration. The arguments

…………………….N…………………….

before your Lordships based on alleged negligence by the respondent might have been more shortly dealt with on the ground that the case as presented in the county Court was not really founded and fought on that ground, and Counsel for the appellant, therefore, thought it right to limit his claim to a request for a new trial. I have, however, thought it best to express my opinion without regard to a point which savours of technicality. In the result, I am of opinion that the appeal fails and must be dismissed, and I move your Lordships accordingly.
The reasons given by the appellant in support of this application are set out in the affidavit of Mr. Sonny Allison as follows:
1. That I am the 1st plaintiff/applicant in this matter.
2. That I have the consent of the 2nd plaintiff/applicant to depose to this affidavit on its behalf.
3. That I have been sick for a very long time and on the 30th day of October, 2013 I was hospitalized at Smart Health Hospital, Lagos, for medical attention. (Copy of the medical report hereby attached and marked as Exhibit 1).
4. That as a result of my illness I have been unable to attend to my family, my business and other corporate and legal responsibilities, including this suit.
5. That after I was discharged from the hospital, my Counsel Chidi E. Ujoatumba, Esq. informed me and I verily believed him:
(a) That the former Law Firm I engaged to handle this matter could not continue to render the required legal services as a result of my illness, which affected their funding.
(b) That on the 17th day of December, 2013 Hon. Justice A.R. Ozoemena of Enugu State High Court entered a default judgment/order against me and the 2nd 
plaintiff/applicant based on an undefended counter-claim filed by the defendant/respondent. (Copy of the judgment is hereby attached and marked as Exhibit 2).
(c) That in executing the above judgment, the trial Court on the 29th day of April, 2014 granted a Garnishee Order in favour of the judgment creditor as a result of the judgment of 17th of December, 2013.
6. That the judgment delivered by the trial Court on the 17th day of December, 2013 was given during period of my ill health.
7. That my long period of illness and lack of communication estranged my relationship with my lawyers.
8. That as a result of my ill health, I was unable to furnish my lawyers with the necessary information and finance required to file this application within time.
9. That the defendant/respondent was aware of my illness, instead of them to find out the status, they went ahead with the suit and obtained a default judgment/order.
10. That the defendant/judgment creditor is threatening to dispose my family property at 2 Ikenna Okwesili Street, Ekulu West G.R.A., Enugu to realize the security.
11. That my Counsel has informed me and I 
truly believe him that the default judgment/order was obtained by fraud and that the Appeal Court has jurisdiction to set it aside and order for a retrial.
12. That I have filed my Notice of Appeal dated 14th November, 2014 and a copy is hereby attached and marked as Exhibit 3.
13. That the defense needs to be determined on its merit.
14. That it is in the interest of justice to grant this application/order to give me and the 2nd plaintiff/applicant the opportunity to exercise our right to fair hearing.

…………………….O…………………….

15. That the defendant/respondent will not suffer any injury if this application is granted.
16. That I make this Oath and believe the content to be true and correct to the best of my knowledge and information.
The decision of the Court below was rendered on 17th December, 2013. This application seeking that time should be extended to file a notice of appeal was only brought on 16th November, 2017. Length of time that lapsed is always a material factor to be taken into consideration in granting or refusing this kind of applications. See Ojora vs. Odunsi (1976) 1 SC 47; Nze vs. Philips (1977) NCAR 28.
The question is whether the illness or sickness of a party is ever a good reason to extend time for an appellant to appeal.
In Akano & Ors. vs. Adediran (1975) 1 NMLR 391 the defunct Western Court of Appeal referred to the affidavit in support of the application seeking that time should be extended for the appellants to appeal against the decision of the High Court per Kayode Eso, J.A. (as he was) at pages 391 to 392 to wit:
The application here is threefold; it is:
(a) For extension of time for leave to appeal;
(b) Application for leave to appeal; and
(c) Extension of time within which to appeal.
The application is in regard to the decision of the Ibadan High Court (Adewale Thompson, J.,) given on 25th February, 1974 Mr. Falade, learned Counsel for the applicant, relied on the affidavit of the applicant wherein be deposed:
4. That judgment was given in favour of the plaintiff by the said Court on 1st December, 1972.
6. That the learned President of Grade A1 Customary Court, after hearing arguments from both sides, reversed the said judgment and dismissed the plaintiffs claims on 
13th April, 1973.
7. That the plaintiff thereafter appealed to the High Court Ibadan in Suit I/25A/73 and judgment was given in his favour thereby reversing the Grade A1 Customary Court, Ibadan judgment and restoring the Grade B Customary Court judgment on 25th February, 1974.
8. That I am dissatisfied with the said judgment and I approached my Solicitor, Mr. S. Ade Falade of 189B Adamasingba, Ibadan to file a Motion of Appeal for me.
9. That my said Solicitor informed me and I verily believe him that I should seek the leave of the High Court, Ibadan before I can appeal.
10. That I thereafter on 30th April, 1974 applied for a certified true copy of the judgment of the High Court to enable my Solicitor prepare the grounds of appeal.
11. That I received the said Certified True Copy of the judgment on 29th July, 1974  a copy is herewith attached and marked annexure A.
12. That my said Solicitor informed me and I verily believe him that time to seek for leave to appeal and time to appeal expired on 25th May, 1974.
13. That my said Solicitor further informed me and I verily 
believe him that except I apply for extension of time to appeal, leave to appeal and extension of time within which to appeal my appeal will not be properly before the Court.
14. That I was sick due to old age early in August, 1974 hence I could not bring these application

…………………….P…………………….

before this time.
15. That I am now well and very anxious to prosecute the appeal.
Eso, J.A. (as he was) held at page 393 as follows:
Chief D.O.A. Oguntoye referred to Order 2 Rule 4(2) of the Western State Court of Appeal Rules and submits that there is a lapse of two months and five days within which no useful step was taken.
He also referred to the following authorities: Finding vs. Finding (1939) 2 All E.R. p.173; Ojora vs. Odunsi (1964) NMLR p.12; Sanu vs. Commissioner of Police (1972) 2 WSCA p.112 and Gatti vs. Shoosmith (1939) 3 All E.R. p.916.
Now Rule 4(2) of Order 2 of the Western State Court of Appeal provides:
(2) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal within the prescribed period, and by grounds 
of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.
It is clear from the rule that there should be:
1. Good and substantial reasons for the failure to appeal within time, and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
The two must be present, otherwise the application fails.
The applicant has not indicated when he briefed a solicitor to file an appeal against the decision of 25th February, 1974. He did not say when the solicitor gave the advice he deposed to in paragraph 9 of his affidavit. There is nothing to show why he took no action between 25th February, 1974 and 30th April, 1974 when he applied for the certified true copy of the judgment. He got the certified true copy of the judgment on 29th July, 1974 but he did nothing until 2nd September, 1974. His only excuse was that he was sick due to old age. We are not satisfied that the applicant has given good and substantial reasons for the delay. We are not impressed by his reasons and we have no 
explanation for the delay of at least over two months.
As we have said earlier, the applicant must show both good and substantial reasons for the delay and grounds of appeal which prima facie show good cause why the appeal should be heard. As he has failed to show one of these two, that is good and substantial reasons for failure to appeal within time, we do not consider it necessary to examine the grounds of appeal.
We have given this application a serious thought and we are unable to exercise our discretion in favour of the application.
For this reason we refused this application which is hereby dismissed with N20 costs to respondents.

In Omoregie vs. Emovon (1982) 6 SC a five-member panel of the Justices of the Supreme Court, refusing to extend time for the appellant to appeal. The Supreme Court held unanimously from pages 6-9 as follows:
Irikefe, JSC: This application clearly lacks merit. Two grounds are listed for seeking the orders prayed for, namely, sudden illness which inhibited the taking of timely steps fro the prosecution of the appeal and inability to perfect Counsels instructions in time. In view of the practice directions recently promulgated by the Chief Justice of Nigeria, I am not persuaded that the reasons stated are sufficient to enable me grant the orders sought.
Accordingly, this application fails and it is dismissed. In the result, the appeal itself stands

…………………….Q…………………….

dismissed for want of prosecution with N300 costs in favour of the respondent.
Bello, JSC: The only reason given for the delay in filing the brief was that the appellant was ill and did not perfect instruction to Counsel. Since the issuance of Practice Directions, this Court will not extend the time within which to file brief simply for non-payment of Counsels fees.
The application is dismissed. The appeal is also dismissed for want of prosecution under Order 9 Rule 7. N300 costs to the respondent.
Eso, JSC: I agree. Application for extension of time dismissed. It is without merit. And as there is no brief filed in the appeal, the appeal itself is dismissed for want of prosecution with N300 costs to respondent.
Nnamani, JSC: This is an application for extension of time within which to file the brief of argument of the appellant. The affidavit attached to the application discloses that the appellant was ill and so could not perfect the instructions of his Counsel. Having regard to the Practice Directions recently issued by this Court, and following recent decisions of this Court on similar applications, I am not persuaded that there are exceptional circumstances to justify granting of the application. The application is refused. I would also dismiss the appeal for want of prosecution, pursuant to Order 9 Rule 7 of the Supreme Court Rules, 1977. I agree with the order as to costs made by the learned presiding Justice.
Uwais, JSC: I agree that there is no substance in the application to extend time to file the appellants brief. The reason given for the delay in filing the brief is not exceptional. Accordingly, the application is dismissed for want of prosecution. N300 costs are awarded to the respondent.

The application for extension of time to appeal was not only refused but the appeal was dismissed. In Ajayi vs. Omoregbe (1993) 6 NWLR (Pt.301) 512 the Supreme Court held at page 528 per Olatawura, JSC as follows:
There must be a line drawn between the fault of a partys solicitor (none was alleged in this appeal) and the fault of the party himself. In the former case the Court has consistently refused to visit the fault of the solicitor on the client. But where the conduct of the party is responsible for the non-prosecution of the case or appeal the party will have himself to blame. A litigant who deliberately, carelessly or wantonly disregards the rule of Court cannot expect the discretion of the Court to be exercised in his favour. Justice, after all said and done, is for both parties. Delay tactics can lead to a miscarriage of justice; witnesses may no longer be available; in the case of an appeal not filed or prosecuted within time, the rights of a third party may be affected.
Reliance placed on illness and poverty cannot avail the appellants: Daniel Omeregie vs. Gabriel Emovon (1982) NSCC Vol.13, page 145.
On the whole, I will dismiss this appeal. It is hereby dismissed. Costs of N1,000.00 in favour of the respondent.

Karibi-Whyte, JSC held at page 533 to page 535 as follows:
The only issue for determination is whether the Court of Appeal was right in the circumstances of this case to dismiss the appeal in the exercise of its inherent jurisdiction for want of diligent prosecution.
Counsel has often resorted to the inherent jurisdiction of the Court whenever the grounds for seeking a relief cannot be properly brought under a rule of Court, or any enabling statutory provision. This inherent jurisdiction is the power resident in all Courts of superior jurisdiction, which is necessary

…………………….R…………………….

for the proper and complete administration of justice and essential to their existence. There are provisions in the Rules of Court enabling the Court to dismiss an action for want of prosecution See Order 6 Rule 10, Order 3 Rule 20(1) (3), Order 3 Rule 25(1) of the Court of Appeal Rules, 1981. There is the inherent power to dismiss an action where the default had been intentional and contumelious, i.e. disobedience of a preemptory order amounting to an abuse of the process of the Court. For instance where plaintiff has failed to comply with certain procedural rules, or an appeal where appellant has failed to comply with certain procedural rules such filing briefs of argument, see Order 6 Rule 10. The Court has an inherent jurisdiction in addition to dismiss an action for want of prosecution where there is default in compliance with an Order of Court, or where the plaintiff is guilty of inexcusable, inordinate delay in the prosecution of the action. The delay may be on the part of the litigant or his Solicitor. The delay would be decisive in the determination of the application where it is very likely to be prejudice to the fair trial of the action. See Thorpe vs. Alexander Fork Lift Trucks Ltd. (1975) 3 All E.R. 579.
It seems to me that the exercise by the Court of its inherent jurisdiction to dismiss an action before it is an answer to the risks likely to result from trial of actions where there is inexcusable, inordinate delays. The general experience at the trial of actions is that recollection of the events must have been dim and waned by the effluxion of time See Ariori & Ors. vs. Elemo & Co. (1983) 1 SCNLR 1. Vital witnesses might have been lost by death or are now outside the jurisdiction and cannot be traced. In some cases apathy have set in and there is the unwillingness or indeed lack of desire of available important witnesses to give evidence. This is the scourge of delay 
on justice. Hence the aphorism, justice delayed is justice denied. A hearing under such a situation as stated above cannot be described as fair to the parties, and cannot survive the test of fairness under Section 33 of our Constitution, 1979 See Mohammed vs. Kano NA (1968) 1 All NLR 424.
Society through the ages has never applauded delayed justice. In England Shakespeare in Hamlet, Act 3 S.C. 1, ranks it among the whips and scorns of time, Dickens, in Bleak House, C.I. explains how it exhausts finances, patience, courage, hope. Our own experience is not in any way different. Delayed justice is regarded as a grievous wrong hard to bear. There have been scathing criticisms of the Courts delay in this Country.
It is however important to observe that all essential elements of delayed justice which tend to prejudice a fair hearing of the case are peculiar to the hearing of the case at first instance. These are the waning recollection of witnesses of the event in issue, or their availability at all.
Hearing of a case on appeal would appear to be governed by different considerations.
An appeal is determined on the record of proceedings 
of the trial in the Court below. It is heard on the printed record. Hence, the questions of recollection of witnesses or their availability vital at the trial, is not relevant and will not affect the hearing of a case on appeal. However, this does not, mean that the Court cannot in a proper case, considering the facts and surrounding circumstances, of inordinate delay suggesting the possibility of injustice on a continuance of the case, resort to the exercise of its inherent jurisdiction dismissing an appeal for want of prosecution.
I have set out the circumstances enabling the exercise of the inherent jurisdiction to dismiss a cause before it for want of prosecution. The application to dismiss an appeal must establish these principles. The appellant whose appeal is sought to be dismissed must disclose sufficient facts to take his case outside the principles enunciated.
In analyzing the reasons for dismissing appellants appeal the Court below would appear to have relied on the following considerations. First, appellant has failed to file his brief of argument

…………………….S…………………….

within time. Time to file brief of argument having expired, appellant has not applied for extension of time to do so. Secondly, appellant has always not been diligent in the prosecution of this case. He has always been tardy since when the case was in the High Court. Thirdly, appellant only collected the record of proceedings after the motion to dismiss the appeal had been served on him.
Whereas the first and third reasons are concerned with and relevant in the prosecution of this appeal, the second reason seems to me not extraneous to it, and was properly relied upon for the exercise of the Courts discretion.

Karibi-Whyte, JSC concluded at page 537 paragraphs C-F as follows:
The question whether respondent would suffer any prejudice if appellant were allowed to prosecute the appeal was not considered in the Court below. As I have already pointed out the instant case is different from trials at first instance involving oral testimony. Although the prejudice to the respondent in the case is of a different kind, it will result in injustice to the respondent. The continued denial of respondent of the fruits of his judgment is unjust. The apparent unpreparedness of the appellant to prosecute the appeal, his earlier conduct in the prosecution of the appeal in which he had to be prodded and compelled by motion to dismiss the appeal to be able to take a step in the action, are to me good, and valid reasons why appellant should not be allowed to abuse the process of the Court merely appearing to be prosecuting an appeal. The principle applied by the Court in cases of inexcusable inordinate or excessive delay is that where there is clear injustice to either or both sides to further prosecute the appeal, the remedy of the Court is to exercise its discretion in dismissing the action. See Allen vs. Sir Alfred MacAlpine & Sons Ltd. (supra). I think the Court below was right in the circumstances of this case, to dismiss the appeal.
Appellant had no excuse for the prevarications and delays in prosecuting the appeal.
I therefore agree with the reasoning and conclusion in the judgment of my learned brother Olatawura, JSC for dismissing this appeal. I also will and hereby dismiss the appeal of the appellant against the ruling of the Court of Appeal dismissing the appeal of the appellant for want of diligent prosecution.

Appellant will pay N1,000 as costs to the respondents.
In Adeshina Moses & Anor. vs. Saibu Ogunlabi (1975) 4 SC 81, Coker, JSC held at page 82 as follows:
Learned Counsel for the plaintiff has filed:-
(i) A notice of preliminary objection to the appeal on the grounds that:
(a) The Notice of Appeal filed does not contain any paragraph stating the relief sought by the defendants; and
(b) That the bond supposed to be executed by the defendants was defective.
(ii) An application on behalf of the plaintiff for an extension of time within which to file a Notice of Appeal or rather cross-appeal against the judgment of the High Court.
We heard arguments on both applications.
It is easier to dispose of the plaintiffs application for extension of the time within which to file a Notice of Appeal. We have read the affidavit in support of the application wherein the two grounds urged for the delay are the impecuniosity of the plaintiff and the rather protracted relapse of an old illness. We are not satisfied that either or both of these grounds could justify us exercising our discretion on

…………………….T…………………….

his behalf to grant an extension of time. The judgment in this case was delivered some eighteen months ago and although learned Counsel contended for the plaintiff that he was just only recently instructed to appeal, we think that having regard to the fact suggested by learned Counsel for the defendants that Counsel who handled the case for the plaintiff in the High Court was from his Chambers, the argument is untenable. We refuse the application for enlargement of time and the motion is accordingly dismissed.
His Lordship concluded at page 84 as follows:
The result is that the objection to the defendants appeal succeeds and the application of the plaintiff to enlarge the time to appeal fails. With respect to the argument about the non-inclusion of the relief sought on the Notice of Appeal, we discover that this was only a typists error and that the original notice contains such a relief.
The appeal is struck out and the application for extension of time is refused. We make no order for costs and the parties should bear their own costs.

In Aworeni vs. Akinyele & Ors. (1967) NMLR 343 the defunct Western State Court of Appeal held at pages 347-348 per Fatayi-Williams, J.A. (as he then was) as follows:
In our view, if the provisions of Section 27 sub-section 4 of the Court of Appeal Edict is read alone, it would appear that the Court of Appeal has unlimited discretion in granting extension of time within which to appeal or apply for leave to appeal. If read with Order VII Rule 4(2) of the Supreme Court Rules, however, there is no doubt that the exercise of the discretion is subject to certain limitations. Therefore, in considering whether this application has any merit we must advert again to the provisions of Order VII Rule 4(2) of the Supreme Court Rules which provide that the application shall be supported by an affidavit:-
(a) Setting forth good and substantial reasons for the failure to appeal within the prescribed period; AND,
(b) By grounds of appeal which prima facie show good cause why the appeal should be heard.
This is how it should be. Even in cases where the Courts discretion appeared, at first glance, to be unlimited, the Court itself had set a limit to the exercise of this discretion. A case in point is that of 
Re Manchester Economic Building Society (1) where, in dealing with an application for extension of time within which to appeal, Cotton, L.J., says at p.499:-
This, I think, may be laid down, that when the rules and the Act of Parliament say that an appeal is to be within a certain time, unless special leave shall be given by the Court of Appeal to appeal after that time, the Court does not grant leave unless there is something which in the opinion of the Court entitles the person who applies for extension of time to be relieved against the bar established by the orders and the Act of Parliament. It has been called an equity, but that is not a proper term; it is something which entitles him to ask for the indulgence of the Court, to ask to be relieved from the legal bar that there is in the orders and Act of Parliament.
The matter was again considered in Finding vs. Finding (2) where Langton, J., observed at page 176 as follows:-
The Court should not lose sight of the fact that, when the time for appeal has run out, and run out without any kind of protest on the part of the would be appellant, the respondent has a certain

…………………….U…………………….

accrued right.
Lastly, in Ratnum vs. Cumarasamy (3) Lord Guest observed at page 935 as follows:-
The rules of Court must prima facie be obeyed, and, in order to justify a Court in extending the time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.
In dealing with matters which might make a would-be appellant qualify for the indulgence of the Court already referred to by Cotton, L.J., in the Manchester Building Society Case (1), Langton, J., again observed at page 177 of the judgment in Finding vs. Finding (2) as follows:
There are other cases in which ignorance of the would-be appellant is the real cause of the delay. Again, it is very right and proper that the Court should be indulgent to an ignorance which, when the matter is properly regarded, is not a very culpable form of ignorance, since it is ignorance of what is to a 
large extent a technicality. Then again we have cases in which, although the parties are not ignorant, there is some genuine misunderstanding arising in the minds of the appellants a genuine misunderstanding either of the attitude of the other side or perhaps of some difficult, intricate questions of law.
Speaking in the same vein, Henn Collins, J., in his own judgment in the same case says at page 177:-
One who asks the Court to grant him that indulgence must show something which entitles him to the exercise of it. That something is, as a rule, either lack of means, mistake, or accident. Those are only instances, and certainly they do not constitute an exhaustive list. They are by far the commonest, however.
It is with these observations in mind that we will now proceed to consider whether the reasons given by the plaintiff/applicant for the delay are good and substantial. Fortunately, we are not without guidance. In Rumbold vs. London County Council and Scott (4) leave to appeal out of time was granted where the reason given was that due to illness of Counsel the draft notice of appeal was not ready 
in time. Again, in Codling vs. Mowlem (John) & Co. Ltd. (5) (reported in English and Empire Digest Vol.3, p.387, an application for extension of time within which to appeal from a decision of the High Court was granted on the ground that the plaintiffs Counsel had overlooked the papers instructing him to settle the notice of appeal and that in consequence the time for appeal had expired. There is also the case of Gath vs. Shoosmith (6). In this case, notice of appeal was not given and served within the time prescribed by rules of Court owing to a mistake of law on the part of the applicants legal adviser. The Court, in its discretion, never-the-less granted the applicant extension of time within which to give notice of appeal.
In the present application it could not be disputed and was, in fact, not disputed:-
(a) That the plaintiff/applicant was an illiterate;
(b) That Chief Williams, his Counsel to handle the appeal personality.
Moreover, the delay was for only six weeks and it occurred during the Courts Annual Vacation, that is, between 22nd July, 1967 and 2nd September, 1967, as published in Western State 
Notice No.544 in Gazette No.32 of 22nd June, 1967. It seems to us, therefore, that there would be nothing unusual for Chief Williams to have traveled to the United Kingdom during this period.

…………………….V…………………….

The next question is this: Do the reasons given by the plaintiff/applicant for the delay entitle him to the indulgence of this Court, having regard to the limit placed on the exercise of this Courts discretion by the provisions of Order VII Rule 4(2) of the Supreme Court Rules? Bearing in mind the authorities referred to earlier, the reasons given for the delay which we accept, the period involved, and the fact that it occurred during the Courts annual vacation when it is not unusual for Counsel not to be available, it is our view that the plaintiff/applicant has given good and substantial reasons for the delay. Furthermore, we are of the opinion, having heard arguments in support of the grounds of appeal filed, that prima facie, there is good cause why the appeal should be heard. That being the case we hereby grant the plaintiff/applicant the extension of time asked for. The time within which to apply for leave to appeal against the interlocutory decision of the Oshogbo High Court given on 28th July, 1967, is accordingly extended until today, Friday 20th October, 1967. Moreover, we propose to follow the course adopted by the Supreme Court in Ojora vs. Odunsi (7) and exercise the powers conferred upon us by Order 1 Rule 5 of the Supreme Court Rules. That rule provides for a departure from the Rules when this is required in the interest of justice.
In Balarabe Musa vs. Hamza Auta (1987) 7 SC 118 a seven member Panel of the Justices of the Supreme Court refused to extend time for the appellant to file a brief of argument. The Justices held from pages 118 as follows:
Fatayi-Williams, CJN: This is an application for an order dismissing this appeal for want of prosecution, the appellant having failed to file his brief of argument within the time specified in Rule 3(1) of Order 9 of the Rules of this Court. There is no doubt that the appellant has failed to comply with this particular rule.
Some time in 1981, the appellant lodged an appeal to this Court against the judgment of the Federal Court of Appeal but he failed to file his brief of argument within the specified time.

On 24th May, 1982, his application for extension of time within which to file his brief of argument was refused by this Court. There would, therefore, appear to be no brief of argument before us in respect of the appeal.
For these reasons, I am of the view that this application is well-founded. No argument of any substance has been put forward to counter the points made by learned Counsel for the respondents in support of the application. The application is, therefore, granted and pursuant to the provisions or Order 9 Rule 7 of the said Rules, the appeal in Appeal No.SC.2/1982 is hereby dismissed for want of prosecution. Costs in favour of the respondents are assessed at N300.00.
Irikefe, JSC: I agree with the ruling just read by the learned Chief Justice of Nigeria in this matter. I also agree with the order as to costs.
Bello, JSC: The appellant having failed to file a brief within time, I agree the appeal should be dismissed by virtue of Order 9 Rule 7 of the Supreme Court Rules, 1977 with N300.00 costs to the respondents.
Idigbe, JSC: I agree that this application be granted and that this appeal be dismissed for want of prosecution.

This Court earlier refused an application to file a brief out of time prescribed by the Supreme Court Rules, 1977. In the circumstances, there is no brief in support of this appeal and following the provisions of the Rules, this appeal must be dismissed for want of prosecution. I endorse

…………………….W…………………….

the order made by my learned brother the Chief Justice of Nigeria.
Obaseki, JSC: I agree with the ruling of my learned brother, Fatayi-Williams, CJN. Nothing said so far by Counsel for the respondents has shown that he appreciates that the Supreme Court Rules form part of the law to be complied with strictly. They form an indispensable part of our law and the fact that discretion is reserved to the Court to relax its hardship where exceptional circumstances is shown, should not be interpreted as non-existence of the Rules.
I can see no escape route for the appellant/respondent in this application. In fact if this application had been before the Court when the application for extension of time filed by the respondent was heard, this matter would have been concluded long ago.
The appeal will properly in my view be dismissed for non prosecution under Order 9 Rule 7 Supreme Court Rules, 1977 and I hereby dismiss it with the same amount of costs as ordered by fatayi-Williams, CJN.
Eso, JSC: I agree that the appeal be dismissed. The application for extension of time within which to file the appellants brief having been dismissed under Order 9 Rule 7 coupled with the Practice Direction of 26th April, 1982, this appeal should and it hereby dismissed with costs as ordered by the learned Chief Justice of Nigeria.
Aniagolu, JSC: Order 9 Rule 7 of the Supreme Court Rules and the Practice Directions dated 26th April, 1982 make it imperative that briefs of argument, on appeals, should be filed within time. The necessity of parties adhering to the Rules of the Supreme Court had been emphasized times without number, including the judgment of this Court in Ukpe Igbodo & Ors. vs. Iquasi Enarofia & Ors. (1980) 5-7 SC 42 at p.57-9. Appellant in this appeal applied for extension of time within which to file brief but the application was refused on 24th May, 1982. The result is that there is no brief filed in this appeal and with the refusal of the application for extension of time to file brief, none can be 
filed.
I cannot see that if no exceptional circumstances had been shown justifying extension of time to file brief resulting in the refusal of the application thereto, that ruling should now be circumvented by a grant of leave for the respondent to adduce oral argument, in lieu of brief, under Order 9 Rule 6(5) of the Supreme Court Rules.
Accordingly, this appeal must be, and is hereby dismissed, under Order 9 Rule 7 of the Supreme Court Rules with costs as contained in the order of the Chief Justice.

The current position in law is that the illness or sickness of a party or an interested party in respect of the decision of a Court below is no good reason to extend time for appealing. Neither is the impecuniously nor poverty of party good reasons for doing so. Time to appeal would not be extended for the inability of a party to perfect instructions of his or her learned Counsel. With the plethora of judicial precedents from the Supreme Court, the defunct Western State Court of Appeal and eminent other jurists, I am of the candid opinion that no good reason has been proffered why the appellants did not file a Notice of Appeal within the time prescribed against the decision of the lower Court.
How about the grounds of appeal? Order 6 Rule 9(2) of the Court of Appeal Rules, 2016 provides that the grounds of appeal must show a prima facie good cause why the appeal should be heard. In other words the Court of Appeal has to take into consideration the provisions of Order 7 Rules 2(1)-(4) and 3-4 of the Court of Appeal Rules, 2016 which provides as follows:
2(1) All appeals shall be by way of rehearing and shall be brought by notice

…………………….X…………………….

(hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the respondent.
4. The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.

If upon an examination of the proposed Notice and Grounds of Appeal there is no chance that the appeal, upon a hearing on the merit, may be dismissed, there would be no need to grant the application. The granting of the application should be predicated on the fact that the powers of the Court of Appeal upon hearing an appeal, are circumscribed by the provisions of Order 4 Rules 9(1)-(5) of the Court of Appeal Rules, 2016 which provides as follows:
(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question, and if it appeals to the Court that, any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the 
party only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:
a) Substitute for the sum awarded by the Court below such sum as appears to the Court to be proper.
b) Reduce or increase the sum awarded by the Court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded. But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below

…………………….Y…………………….

(5) A new trial shall not be ordered by reason of the ruling of any judge of the court below that a document is sufficiently stamped or does not require to be stamped.
The Court of Appeal is only empowered to interfere with the verdict of a Court below under the circumstances provided under Order 4 Rule 9(1)-(4) of the Court of Appeal Rules. So where the appellants/applicants are unable to show to the Court of Appeal from the proposed grounds of appeal that some substantial wrong or miscarriage of justice has been thereby occasioned, or in case of a challenge to the award of damages that they were either excessive or inadequate  as provided under Order 4 Rule 7(2)-(4) of the Rules, the Court of Appeal may refuse the application.
Furthermore, if a ground of appeal is vague or discloses no reasonable ground, the Court of Appeal may not extend time for the appellant to file a Notice of Appeal. What is a reasonable ground of appeal is not defined in the Rules. However, in Ibrahim vs. Osims (1988) 6 SCNJ 203, Uwais, JSC (as he was) held at page 209-2010 as follows:
But the phrase reasonable cause of action which is used in Order 18 Rule 19 of the English Rules of the Supreme Court (See Volume 1 of the Supreme Court Practice 1979) had been defined in Drummond-Jackson vs. British Medical Association & Ors. (1970) 1 W.L.R. 688 at page 696 C by Lord Pearson who observed:
First there in paragraph (1)(a) of the rule the expression reasonable cause of action, to which Lindley M.R. 
called attention in Hubbuck & Sons Ltd. vs. Wilkinson, Heywood & Clark Limited, (1899) 1 Q.B. 86 pages 90-91. No exact paraphrase can be given, but I think reasonable cause of action means a cause of action with some chance of success, when (as required by paragraph (2) of the rule) only the allegations in the pleadings are considered. If when those allegations are examined it is certain to fail, the statement of claim should be struck out.
This definition was approved by this Court in Chief (Dr.) Irene Thomas & Ors. vs. The Most Revered Timothy Omotayo Olufosoye (1986) 1 NWLR 669 at page 682 (per Obaseki, JSC)
As has been shown, the question whether or not a reasonable cause of action existed in the statement of claim filed by the respondent is a question of fact based on the circumstances of the transaction between the appellant and the respondent.

In Uwazuruonye vs. Governor of Imo State (2012) 11 SCNJ 46, Onnoghen, JSC (as he was) held at page 69 as follows:
In conclusion, I affirm the decision of the lower Court that appellant has not disclosed a reasonable cause of action neither has he established any locus standi to initiate the action. The above being the case, it is clear that the action so constituted in the said circumstances is grossly incompetent and liable to be struck out. It is therefore my view that suit No.HOW/92/95 be and is hereby struck out for want of jurisdiction, with costs which I assess and fix at N100,000.00 against the appellant and in favour of the respondents.
Appeal is dismissed.

If it is permissible for me to borrow a leaf from the meaning of what is a reasonable cause of action, I may hold that a ground of appeal has to show the possibility of the success of the appeal if leave is granted and time is extended for the Notice of Appeal to be filed by the applicant/appellant.
The effect of the plethora of authorities I have referred to shows that once the Court considers, but holds that no good reasons exist for not appealing within the time stipulated under Section 24(2)(a) of the Court of Appeal Act, 2004, considering the length of time involved, the application should be
refused and the appeal should be dismissed.
Accordingly, I refuse the application which is equivalent to an appeal under Section 30 of the Court of Appeal Act, 2004 and I hereby dismiss the appeal. I award N100,000.00 cost to the respondent.

Appearances

Chidi E. Ujoatumba. For Appellant

AND

Lekan Bade-John with him, Ujam H. Ujam. For Respondent.

Leave a Reply

Your email address will not be published. Required fields are marked *